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If your workplace is typical, you probably have routine procedures for conducting investigations of employee misconduct. Your procedures may require investigators to advise those interviewed that they should not discuss an ongoing investigation with their coworkers. The reason for such a policy is obvious: if witnesses discuss an ongoing investigation, hearsay and rumors may take the place of facts, and the integrity of the investigation may be compromised.

While it may seem surprising that anyone would dispute the necessity or legality of routinely asking employees not to discuss ongoing investigations, the National Labor Relations Board (“NLRB” or “Board”) did exactly that in a Board decision this past June.

It found that employer Banner Health System had engaged in an unfair labor practice due to its HR consultant’s use of a standard checklist that reminded her to request that employees interviewed in connection with workplace investigations refrain from discussing the investigations with their coworkers.

According to the NLRB, even though the HR consultant did not always follow the checklist’s directive to request confidentiality, the fact that the directive existed and was sometimes followed constituted a violation of employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). (Section 7 of the NLRA protects the right of both unionized and non-unionized employees to engage in “concerted activities for the purpose of… mutual aid or protection.” Section 7 has been broadly construed to prohibit employers from limiting communication among employees where the limitation might chill employees’ efforts to better their working conditions).

About the Case

In the Banner Health case, James Navarro, a Banner Health employee, had told HR consultant JoAnn Odell about a workplace incident that caused him concern about safety procedures at the company and about his job. Odell listened and took notes on a standard “Interview of Complainant” form that included a checklist of what interviewers should say and do during investigatory interviews. One of the checklist items was to tell interviewees that they should not “discuss this with your co-workers while this investigation is going on, for this reason, when people are talking it is difficult to do a fair investigation and separate facts from rumors.”

It appears that Odell failed to comply with the directive in Navarro’s case: she did not tell him to refrain from discussing the matter. In fact, Odell testified that she did not regard the interview as part of an investigation at all.

Nevertheless, the NLRB found that Banner Health’s maintenance and utilization of a “policy” reminding investigators to routinely instruct interviewees to refrain from discussing ongoing investigations was unlawful under Section 7 of the NLRA.

The Board did not go so far as to suggest that employers could never direct employees involved in investigations to refrain from discussing them with co-workers. However, in order for such a directive to be lawful under Section 7, according to the NLRB, the employer must determine on a case-by-case basis that confidentiality is necessary “based on objectively reasonable grounds for believing that the integrity of the investigation will be compromised without confidentiality.” Application of a confidentiality requirement on a case-by-case basis may be upheld, providing that the employer can demonstrate that such objectively reasonable grounds exist. In contrast, a categorical policy imposing confidentiality in every investigation of employee misconduct will be deemed unlawful if challenged.

Significantly, the NLRB’s decision was not unanimous. One member of the three-member panel strongly dissented, stating his opinion that the NLRB’s approach was unworkable: According to the lone dissenter, under the majority approach, employers must “discard consistency in favor of a haphazard, ad-hoc patchwork of just-in-time decision making.” While most employers would probably agree with the dissent’s assessment, the unfortunate reality is that only the majority opinion has the force of law.

Takeaway For Employers

What should you do in response to the Banner Health decision? If your company has a blanket rule stating that employees involved in workplace investigations should be told to keep the investigations confidential, that rule should be eliminated. HR representatives and others who conduct investigations should be trained to make a case-by-case determination, at the beginning of each investigation, as to the necessity for imposing a requirement that interviewees not discuss the investigation with co-workers. Importantly, investigators should be instructed that, when they determine that confidentiality should be imposed, they must make and maintain notes demonstrating the “objectively reasonable grounds” which exist to cause them to believe that the integrity of the investigation will be compromised without confidentiality. These notes will demonstrate that the required case-by-case analysis was properly conducted. It goes without saying that a confidentiality requirement should not be imposed in every investigation: if a challenge were made, the NLRB would be unlikely to believe that “objectively reasonable grounds” could be found to exist in 100% of a company’s investigations.

However you feel about the soundness of the NLRB’s decision, it is best to follow the case-by-case approach the Board recommends. Failure to do so could result in your company’s facing the burden and expense of defending an unfair labor practice charge.

Compare jurisdictions: Employment: Canada

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